How the Proposed ‘Assembly of the States’ Differs from an Article V Convention of the States

Some readers have confused my proposal for an “Assembly of the States” with an Article V Convention of the States.

But the two proposed gatherings of the states are markedly different in purpose, means of calling, legal authority and likelihood of coming to fruition within the next twelve months.

(1) Purpose:

The purpose of the Assembly of the States would be “to identify and share best practices for the assertion by the states of their 10th amendment rights among the several states.”

The purpose of an Article V Convention of the States would be to propose amendments to the Constitution for presentation to the states for ratification.

(2) Means of Calling:

An Article V Convention of the States can be convened only upon the “application” of 34 state legislatures to Congress to call the convention, as specified in the Constitution itself.

In contrast, an Assembly of the States can be convened as soon as a single state legislature passes a resolution stating it will serve as the host state. It would then extend invitations to each of the other 49 state legislatures to send a delegation to the gathering.

(3) Legal Authority:

The Constitution specifically provides the legal authority by which state legislatures can convene a Convention of the States in Article V. It requires the approval of two thirds of the state legislatures. Once that threshold is passed, the Constitution requires Congress to call the Convention of the States.

Here is the text of Article V of the Constitution by which legal authority for an Article V Convention of the States is granted:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

As for the proposed Assembly of the States, state legislatures are free to pursue the proposal, just as they are free to undertake any of a myriad of other actions. Such action by the state legislature falls under that First Amendment guarantee of “freedom of assembly.”

Here is the text of the First Amendment by which legal authority for the Assembly of the States is granted:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(4) Likelihood of Coming to Fruition Within the Next Twelve Months:

Despite growing popular support, the likelihood that 34 state legislatures will have passed resolutions requiring Congress to call an Article V Convention of the States over the next 12 months is virtually zero.

An Article V Convention of the States is several years, at best, from becoming a reality. In contrast, the proposed Assembly of the States requires just one state legislature to step up, and that is very doable in the next several months, certainly within the next year.

As best I can determine, there are two major alternative resolutions being considered by state legislatures at present. One asks Congress to call an Article V Convention of the States solely for the purpose of considering a Balanced Budget Amendment. The second asks Congress to call an Article V Convention of the States to consider a broad range of amendments. This latter proposal is most often identified with conservative talk radio show host Mark Levin.

At least 27 states have already passed resolutions calling for an Article V Convention of the States solely for the purpose of considering the passage of a balanced budget constitutional amendment. If seven more states pass the resolution, Congress, acting solely in a ministerial capacity, “shall call a convention for proposing amendments.”

Four states have formally called for an Article V Convention of the States not limited to the consideration of just a balanced budget amendment. They are Georgia, Florida, and Alaska, which passed their resolutions in 2014, and Alabama, which passed its resolution in 2015.

So 30 more states must submit similar applications to Congress before it is required to act in its ministerial capacity and call a convention designed to address more than just the balanced budget amendment.

How this all plays out, however, remains uncertain. It is not entirely clear that the current Congress would respond in the ministerial fashion required by the Constitution and actually call the convention.

For these reasons—the uncertainty of whether and when seven more states will pass resolutions supporting the balanced budget-only convention, the uncertainty of whether and when 30 more states might pass resolutions supporting the broader convention, the lack of clarity as to whether a convention called specifically to address only one amendment could address more than that amendment, and the uncertainty over whether and how Congress would actually call for a convention if the Constitutional requirement of 34 state applicants were to be met, it is unlikely that an Article V Convention of the States could be held for several years, at best.

Then, once a convention is held and amendments are proposed they would be submitted to the states for ratification. Not until three-quarters of the states have ratified the proposed amendments would they be added to the Constitution. This process that could take anywhere from a year to a decade or even longer.

In contrast, the proposed Assembly of the States can begin any time a single state legislature decides to act as host. A May 2016 start date is entirely reasonable, as most of the 50 state legislatures will convene in January 2016, which gives plenty of time for them to act, if they are so inclined. And the recommendations from the Assembly of the States could be put into effect immediately by the states.

Might the ‘Assembly of the States’ Serve as a Precursor to an Article V Convention of the States?

The short answer is yes.

As I wrote in the original proposal, “[t]he proposed Assembly of the States is not an Article V Convention of the States. . . but there would be no restriction upon the Assembly discussing proposed constitutional amendments for the consideration of any future Convention of the States.” In my view however, such discussions, would be secondary to the primary purpose of the gathering.

The proposed Assembly of the States might serve as a precursor to an Article V Convention of the States, just as the Committees of Correspondence served as a precursor to the Continental Congress and the Annapolis Convention served as a precursor to the Constitutional Convention.

Both supporters and opponents of an Article V Convention of the States might look to the proposed Assembly of the States as an example of the manner in which delegates selected by the several states behave in a specially convened gathering.

Might the ‘Assembly of the States’ Develop More Legally Binding Agreements?

Again, the short answer is yes.

As I wrote in the original proposal, “the recommendations of the ‘Assembly of the States’ are not designed to be binding on any individual state; rather they are a set of suggestions for effective actions each state can undertake to restore its constitutionally granted sovereignty based on thoughtful consideration and actual experience.”

States could choose to merely follow those “best practices” recommendations entirely on their own, without any formalized laws or agreements, merely in the normal exercise of the administrative powers of the state’s executive branch.

Now, as to the institutionalization of those recommendations that each state can undertake to re-assert their 10th amendment state sovereignty rights that might carry more legal weight than “best practice” recommendations , some interesting possibilities could be pursued.

Agreements between the states may start and succeed on an informal basis, but they could also be formalized through interstate compacts. Interstate compacts are common and constitutional—The Tennessee Valley Authority and the Council of Great Lakes Governors, for instance, are examples that have been operational for decades.

The use of interstate compacts could strengthen state resistance to federal usurpation, and give that resistance more legal and moral authority.

Interestingly, all compacts between states require Congressional approval, as specified in the Compacts Clause of the Constitution, Article I, Section 10, Clause 3, which states that “no state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

Since the 1893 Supreme Court decision Virginia v. Tennessee, courts have interpreted the Compacts Clause to mean that interstate compacts require Congressional consent only when the proposed interstate compact changes the balance of powers between the federal government and the state, as that balance is articulated in the Constitution.

Clearly, any interstate compact arising out of the Assembly of the States would specifically address the balance of powers between the federal government and the states, but it would do so by citing the constitutional authority of the 10th amendment itself.

Should Congress reject such an interstate compact, it would find itself in the very sticky position of refusing to approve an interstate compact on the grounds it is designed to preserve the Bill of Rights!

Imagine how the states who are party to such an interstate compact might react if Congress denied approval to such a compact. Imagine further the discomfort the Supreme Court would experience if the states challenged that decision in the federal courts. Would the Supreme Court side with Congress and rule it was within its constitutional authority to reject an interstate compact designed to preserve the Bill of Rights?

Such a set of circumstances would only serve to reinforce the moral authority of the states’ constitutional position, and further undermine the already shaky credibility of the current Congress and the current Supreme Court, the two branches of the federal government which are supposed to serve as checks on the abuse of power by the out-of control executive branch.

Interstate compacts arising from the Assembly of the States could be separate agreements which each state could choose to join or not join, and be specific to particular areas, such as Education, Environmental Regulations, Usurpations by the Federal Judiciary, Housing, Health Care, etc.

The compacts could be simple and straightforward. An interstate compact about education arising from the best practices recommendations of the Assembly of the States could read something like this: “The below signed states agree to cooperate in re-asserting their state sovereignty rights as guaranteed by the 10th amendment in the area of educational policy.”

Under that broad mandate, states could work cooperatively to resist the Common Core standards initiative, for example, a particularly egregious instance of the federal government intruding on states’ rights in the area of education by making federal grants funds available to the states, with strings attached.

Common Core standards were adopted by 45 states beginning in 2009 when President Obama inserted the Race to the Top (RttT) competitive grant program into his stimulus bill. With RttT, the U.S. Department of Education under Arne Duncan essentially lured states into adopting Common Core with the promise of federal grant money at a time when many states were strapped for cash.

The federal government also incentivized states with the promise of waivers from the onerous No Child Left Behind (NCLB) restrictions. Many states received both RttT federal grant money and NCLB waivers in exchange for adopting the Common Core initiative.

Many governors are now fearful of repealing the Common Core initiative because it could mean the loss of their federal grant money and NCLB waivers.

An Assembly of the States “best practices” education policy recommendation institutionalized via an interstate compact could offer concrete solutions to governors facing just that dilemma and offer alternatives to the terrible choice of balancing their state’s budget at the cost of sacrificing their state’s sovereignty.

Given the current condition of our constitutional republic, every governor and every state legislature in the country can use all the help that can possibly be provided to resist the ongoing usurpations of the increasingly voracious federal government.

For this reason, and for many others, I urge every state legislature in the country to consider passing a resolution at the earliest possible opportunity to either host or attend the proposed Assembly of the States.